Press and daily Dakotaian. (Yankton, Dakota Territory [S.D.]) 1880-1889, 1887-01-15
OWEN TO MOODY.
A Reply to the C~ommunica.
tiOn of the Black Hills
Senator.
An Ultra State Man Analyses The
Defence Of one Of the Con-
s~ervatives

Sir: Your letter OF Dec. 3lst, published
in the Press and Dakotaian, indicate,
that you are as heretofore a sincere
friend OF statehood for Dakota, but that
in your opinion, the right of petition II
the only power we ought to exercise
Do you not speak without due reflection
when You say that "a state ont Of the
union is as impossible of existence as il
that OF q bird in the water or q fish in the
air." Did not the state of Michigan SC
exist for a year and o half? Did she not
enact laws, create corporations and exer.
else the functions of q state? Did not
the supreme court Of that state decide
that the act of her state legislature,
before admission, creating the Detroi,
young mems society. was o solid law and
it had power to hold real estate by virtue
OF that law? Detroit young mems
soclety vs. Scott, l Douglas. l19.)
This sSse went to the supreme court
OF the United States and was there
dismissed for wsnt of juris.
dictiop. leaving the decision OF
the supreme court of Michigan to stand
as the decision of the court of last resort,
Ihis is the only decision known to the
writer by q court of last resort which
exactly and necessarily involved the
direct question whether q state can ex-
list out OF the union. 1t is not dictpna,
but a judicial decision that d stata ont
OF the union may and did possess vital
power that it lawfully did create a
corporation. That decision has never
been IN any set aside or over
ruled but stands to-day as an authorita-
tive, judicial declaration that a state can
and did exist out of the union.
You say that if a lawyer could be
found who would present to the United
States sapreme court a proposition you
name "he would be met at once by the
uniform decisions OF that court to the
effect that the legislative power of con-
gress over the territories is absolute
l beg your pardon. That court says:
In the construction OF This pow by
all the departments OF the government
1t has been to authorize the acquisition
OF territory not fit for admission at the
time but to be admitted as soon as its
population and situation entitle il 10
admission. 1t is acquired to become a
state, and not to be held as o colony and
government by congress with absolute
authority" y ' "The citizens oil the
United States who immiRrate TO a ter
rlfory belonging to the. people OF the
United States, cannot be ruled as mere
%colonists, dependent upon the viii OF
the general government, and to he gov
erned by any laws it may think proper
to impose" y = - "a 49, 49,
therefore, in the general government ID
obtain and hold colonies and dependent
territories Q which they might Ieois-
late without restriction, would be in
consistent with its own existence in its
present form" \ 4 4
The territory being q pE1t of the United
States, the government and it's %oitizens
both enter it under authority OF the
constitution, with their respe otiye rights
defined and marked out; and the federal
government can exercise no power over
his person or property beyond what
that instrument c~onfers, nor lawfully
deny any right which il has reserved
Q9 Howard 446.)
Our friends frequently refer to the
language OF the supreme court of the
United States In the Yankton bond case
ss establishing the point that congress
has supreme legislative control over the
territories. No question of the right Of
the people to create q state arose or
could arise in that case. Dakota was
then a territory. 1t had not attempted
to assume statehood. The decision
related to the power OF congress over a
territory which had never claimed in any
form to be any thing but q territory.
The acts OF the territorial Legislature
which to-day meets ct Bismarck will
lawfully apply to ell Dakota. That body
would be derelict in duty if it did not
legislate for south as we'll aa north Da.
kota. Every territorial and county off,
Ger performs nothing more than a pa
triotio daty when he takes the oath of
office to support the. organic act OF the
territory Of Dakota. It is the only GOV
eminent we have, .uatil the state assumes
her lawful functions. The territorial
officers are on duty and cannot abandon
their posts until the relief guard ap-
pears. Anarchy would otherwise result.
When the officer of the new guard
reaches his post he Immediately occu-
pies it, places his men, and notifies the
old guard that they are relieved, who
then retire to their quarters. II they
should attempt the unheard OF thing OF
attempting longer to occupy the post
they become rebels against law.
LIS not a state created before it can be
admitted into the union? Congress adj
mits new states; it can no more create q
state than it can create a star. lis Da-
kota lifeless clayf Does congress
breathe into it life? Such words have
been uttered but you will not say it.
Statehood ls q fact. Admission TO the
union is an independent matter. States
preceded the union. There were ORR
ginally q number of them. They we're
alive and acting. They formed a unior
and made provision that their congres
might afterwards admit additional state,
and 1t wss contemplated that these state,
should make themselves from the out.
lying territory which was first clsimei
by individual states but afserward
turned over To the rn,tad Stotaa 90 &..r;